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COVID-19 and employees who don’t want to return to work

On Behalf of | Nov 10, 2020 | COVID-19

With Governor Newsom recently announcing that California is ready to enter the early stages of “reopening” the local economy, many employees have questions about what this means for them. If your employer is able to begin this soft opening, are you required to return to work? 

Do I have to return to work?  

Generally speaking, the answer is yes. However, there are certain exceptions and if your health or safety are in question in the workplace, you may want to discuss your legal options with an experienced employment lawyer. 

In a recent survey of 470 US workers by Forrester Research, concerns among employees are rising. Indeed, US workers experienced a dramatic and understandable rise in concern for themselves, both generally and at work: Nearly half of all workers — 41% — are now afraid to go to work, compared with 29% two weeks ago. In other words, you are not alone and you have our experienced legal team on your side. 

PPP and how it relates to your job 

The Paycheck Protection Program (PPP), which many small and medium-sized businesses applied for under the Coronavirus Aid, Relief, and Economic Security Act (CARES), was intended to protect employees and business owners alike. As part of the requirements of loan forgiveness, a business cannot reduce its employee headcount between February 15, 2020 and April 26, 2020. If it does, then the amount of loan forgiveness may be reduced. If the employer reinstates those employees by June 30, 2020, however, the loan forgiveness amount will not be reduced. 

For this reason, many employers are highly motivated to make sure their employees are willing to return to work, perhaps in spite of safe conditions. 

Employee OSHA rights in light of what is reasonable 

An employee generally does not have the right to refuse work simply because of a potentially unsafe condition in the workplace. At the same time, an employer may not discriminate against an employee who exercises “any right afforded” by the OSH Act. According to the Occupational Safety and Health Administration (OSHA), an employee may only refuse to come to work if: 

  • The employee asked the employer to eliminate a hazard in the workplace but the employer has failed or refused to do so; 
  • The employee has a “good faith” belief that an imminent danger exists; 
  • A “reasonable” person would agree there is a “real danger” of death or serious injury; AND 
  • There is no time to get the hazard corrected through appropriate channels 

What is reasonable in times of this pandemic? Employers and employees are likely to disagree. 

For a no obligation consolation, contact the experienced employment attorneys at the Law Offices of Eric A. Boyajian today.